Gabor Rona of Human Rights First sent me the following note in response to my posts responding to his comments on my comments on Thomas Jocelyn’s and Captain Patrick McCarthy’s comments on Omar Khadr. I’m going to let Gabor have the last word in this exchange, which I think has been illuminating and for which I thank him very much:
Thanks, Ben for the opportunity to reply.
In your first post, you re-cast my mirror-image hypothetical with “facts” gleaned from Omar Khadr’s plea agreement. I challenged the credibility of that agreement and you defended it with reference to similarities in the plea bargaining aspects of the civilian criminal justice system. You’re right, to a point. That system is also stacked against the accused. It’s virtually impossible to get a trial in a criminal court, state or federal. Prosecutors overcharge, and the vast majority of defendants plead guilty to something less than what they were charged with. If the tiny number of (often narcissistic, in my experience) defendants who go to trial were to increase by a tiny amount, the system would collapse. And so, it needs carrots and sticks to prevent trials. The carrot and stick are inseparable. If you go to trial and lose, your punishment will be greater than if you cop a plea. The plea deal is wrapped in a scripted colloquy in which the defendant acknowledges the factual basis and voluntariness of his plea.
You seem to suppose that if one has three lawyers and a colloquy with the judge, then the “facts” one stipulates to in a plea deal must be provable beyond a reasonable doubt. My experience: that’s naïve. My clients used to plead to nonsense all the time to avoid a heavier charge and punishment. Put any prosecutor or defense lawyer or defendant or judge on a polygraph on that issue. I’ll give you 5-1 odds on the results. One small difference with military commissions though, is that if you do have the temerity to go to trial in federal and state court, you get to go home if found not guilty. And simple logic suggests that just because B is also flawed, doesn’t make A good.
You defend the conclusion that Omar Khadr is a murderer and terrorist with the observation that he admitted no less. This requires us to assess not only the voluntariness of the plea, but also an entirely distinct question: what is the factual basis for the plea? One could very voluntarily, in return for a consideration, agree that the moon is made of green cheese (as some of my clients used to). As to murder by Omar Khadr, fact is, there was scant evidence of who threw the grenade, but if I were faced with the option of a) pleading guilty in return for getting out or b) having a trial with the knowledge that I could be detained for life even if found not guilty, I suspect I’d do the former.
Also as to murder, in your second post on Khadr you attribute to me the assertion “that there was nothing illegal about Khadr’s taking up arms against U.S. forces.” I did not say that. I said that it was not a war crime. That’s a critical distinction to the determination of subject matter jurisdiction of a military commission for the crime of “murder in violation of the laws of war.” Assuming nothing else wrong with military commissions (and that’s a big leap) it would be a different story had the essence of the charge been perfidy rather than unprivileged belligerency. That’s not to say he would or should have been found guilty of perfidy, only that perfidy is, at least, a violation of the laws of war. True, murder in violation of the laws of war is also, obviously, a violation of the laws of war. But homicide by an unprivileged belligerent, which appears to be the basis for that charge and conviction, is not.
You make several historical references: Leiber Code, Winthrop, 1956 AFM. There is no doubt that unprivileged belligerents are not entitled to PoW status and may be tried for their acts of unprivileged belligerency. But the offenses must either be violations of the law of war or crimes defined in domestic law. If the domestic law violation is “murder in violation of the laws of war,” these historic references simply don’t get you home because the charge requires proof of something more than homicide (a non-judgmental term in the law) in the context of unprivileged belligerency. And it doesn’t matter that the law establishing the military commissions purports to provide them with subject matter jurisdiction beyond war crimes if the charge is either murder or littering “in violation of the laws of war.”
Your stronger points, I think, are the accusations of terrorism that are not related to the homicide. There’s pretty good evidence that Khadr provided material support to terrorism and I did not deny, as you attribute to me “that Khadr can reasonably be described as a terrorist.” I denied that he can reasonably be convicted of being one on the basis of the flawed military commission process.
Finally, as to the question of trials of kids for war crimes (in military commissions, no less) you say that the U.S. dissents from the notion that it’s not a good practice. Yes, it does. And the U.S. is one of only two countries that are not parties to the Convention on the Rights of the Child. We’re in bed with Somalia on that one. So what significance is it that the U.S. is an outlier, other than to show it’s an outlier? And here, too, your argument rests on the admissions of responsibility made in the plea agreement – on the voluntariness of his involvement in the offenses as reflected therein. But how voluntary is a young teenager’s involvement in violent jihad that is part of his parents’ life-vision? I didn’t get to quit piano lessons until my parents let me, at age 15. And if you think that’s a ridiculous analogy because piano lessons are different than violent jihad, then you are overestimating a brainwashed teenaged kid’s ability to think beyond himself. I think the more accurate reflection of Omar Khadr’s maturity is in the pathetic video that shows him begging for his mother during interrogation.
Overall, I think your confidence in Khadr’s guilt relies on a false sense of security about the sanctity of plea bargains and a failure to acknowledge the explicit limitations of subject matter jurisdiction in the Military Commissions Act.
But I’m still glad to see that you would not lock the door and throw away the key on Omar Khadr.